Judiciary in Ancient India*

The judicial system deals with the administration of the laws

through the agency of the law givers or the courts. The system
provides the machinery for the resolving of the disputes on
account of which the aggrieved. Nothing rankles in human heart
more than a brooding sense of injustice. No society can allow a
situation to grow where the impression prevails of there being no
redress for grievances.
India has a recorded legal history starting from the Vedic ages
(ca.1750500 BCE) and some sort of civil law system may have
been in place during the Bronze Age in India that is around 3000
BCE and the Indus Valley civilization, which is the period between
2600 BCE and 1900 BCE. Law as a matter of religious
prescriptions and philosophical discourse has an illustrious history
in India. Emanating from the Vedas, the Upanishads and other
religious texts, it was a fertile field enriched by practitioners from
different Hindu philosophical schools and later by Jains and
Buddhists.
World timeline

Secular law in India varied widely from region to region and from
ruler to ruler. Court systems for civil and criminal matters were
essential features of many ruling dynasties of ancient India.
Excellent secular court systems existed under the Mauryas (321185 BCE) and the Mughals (16th 19th centuries) with the latter
giving way to the current common law system. The Modern Indian

Judiciary is partly a continuation of the British Raj legal system

established by the British in the mid-19th century based on a
typical hybrid legal system known as the Common Law System, in
which customs, precedents and legislative is all components of
the law. The subject matter is not a part of the curriculum in the
top law colleges in India but is of immense importance for all law
students of top law colleges in India.
So the History of Judicial system in India can be classified in to
three stages, as follows
(i)
Judicial System in ancient India that is Pre-Islamic invasion
(ii)
Judicial System in Medieval Age
(iii)
Judicial System in British Rule.
The scope of our discussion in this article we shall take the first
stage.
India has the oldest judiciary in the world. No other judicial
system has a more ancient or exalted pedigree. History of Indian
judicial system takes us to the hoary past when Manu and
Brihaspati gave us Dharam Shastras, Narada the Smritis, and
Kautilya the Arthshastra .A study of these memorable books
would reveal that we in ancient India had a fairly well developed
and sophisticated system of administration of justice. In broad
outlines there is considerable similarity between the system then
in vogue and the system now in force.
Judicial System in Ancient India
In the early Vedic times, we do not find any reference as regards
the establishment of judicial procedure. The jurisprudence of
Ancient India was shaped by the concept of `Dharma, or rules of
right conduct, as outlined in the various manuals explaining the
Vedic scriptures such as `Puranasi' and `Smritis'. The King had no
independent authority but derived his powers from `Dharma,
which he was expected to uphold. The distinction between a civil
wrong and a criminal offence was clear. While civil wrongs related
mainly to disputes arising over wealth, the concept of sin was the
standard against which crime was to be defined. (Basham, 1967;

Jois 1990). The Maurya Dynasty, which had extended to

substantial parts of the central and eastern regions during the 4th
Century, B.C., had a rigorous penal system, which prescribed
mutilation as well as death penalty for even trivial offences
(Sharma 1988).
The Manusmti or "Laws of Manu", Sanskrit Manusmti ;
also known as Mnava-dharmastra , is the most
important and earliest metrical work of the Dharmastra textual
tradition of Hinduism written by the ancient sage Manu prescribes
ten essential rules for the observance of Dharma: Patience
(dhriti), forgiveness (kshama), piety or self control (dama),
honesty (asteya), sanctity (shauch), control of senses (indraiyanigrah), reason (dhi), knowledge or learning (vidya), truthfulness
(satya) and absence of anger (krodha). Manu further writes,
"Nonviolence, truth, non-coveting, purity of body and mind,
control of senses are the essence of Dharma". Therefore dharmic
laws govern not only the individual but all in society. Sir William
Jones assigned Manusmriti to a period of 1250 BCE. Karl Wilhelm
Friedrich Schlegel assigned it to 1000 BCE. In present form,
Manusmriti is commonly dated to 5th century BCE. Some scholars
have estimated to be anywhere between 200 BCE and 200 CE.
The Manu smti shows the obvious influence of previous
Dharmasutras and Arthashastras. In particular, the Manusmriti
was the first to adopt the term vyavaharapadas. These eighteen
"Titles of Law" or "Grounds for Litigation" make up more than one
fifth of the work and deal primarily with matters of the king, state,
and judicial procedure. The dharma classes of texts were
noteworthy because they did not depend on the authority of
particular Vedic schools, becoming the starting point of an
independent tradition that emphasized dharma itself and not its
Vedic origins. The Manusmti recognized assault and other bodily
injuries and property offences such as theft and robbery (Pillai
1983; Griffith 1971; Thapar 1990; Raghavan 2002). So the
concept of Dharma ruled Indian civilization; from the Vedic period
up to Muslim invasion from King to his last servant everyone was
bound by Dharma.

The word Dharma is derived from "dhr" to mean to uphold,

sustain or nourish. The Seers often use it in close association with
rta and satya. Sri Vidyaranya also known as Mdhava
Vidyranya is variously known as being a kingmaker, patron
saint and high priest to Harihara Raya I and Bukka Raya I, the
founders of the Vijayanagar Empire, born in 1268 CE and was the
12th Jagadguru of the Sringeri Sharada Peetham from 1380 to
1386 A.D defines rta as the mental perception and realization of
God. The Taittiriya Upanishad also uses it with satya and
dharma. It exhorts students to speak the truth and practice
dharma (Satyam vadha: Dharmam chara). According to Sankara
Bhagavatpada satya means speaking the truth and dharma
means translating it (Satya) into action.
"Satyamiti yathasastrarthata sa eva anusthiyamanah
dharmanama bhavati."
In this regard, the explanation given by Sri.K.Balasubramania
Aiyar is relevant: "An analysis of the significance of these three
words (rta, satya and dharma) brings out clearly to us the
fundamental basis of dharma as the ideal for an individual. While
rta denotes the mental perception and realization of truth and
satya denotes the exact true expression in words of the truth as
perceived by the mind, dharma is the observance, in the conduct
of life, of truth. In fact, dharma is the way of life which translates
into action the truth perceived by the man of insight as expressed
by him truly. In short, rta is truth in thought, satya is truth in
words and dhrama is truth in deed."
Dharma is generally mean principle of righteousness or duty,
principle of holiness and also the principle of unity. Yudhishthira
says in his instructions to Bhishma that whatever creates conflict
is Adharma, and whatever puts an end to conflict and brings
about unity and harmony is Dharma. Anything that helps to unite
all and develop pure divine love and universal brother hoodness is
Dharma. Dharma advocates if the Paramatman is to draw us unto
himself we must, without fail; perform our duties to him as well as
to the world. It is these duties that constitute what is called
dharma. Again, it is dharma that serves us when we dwell in our

body and when we cease to dwell in it. It serves us in life and

afterlife. There need be no doubt or confusion about the dharma
we ought to follow. We are all steeped in the dharma that our,
great men have pursued from generation to generation. They
have inwardly realized eternal beatitude and we know for certain
that they lived without any care, unlike people in our own
generation who are always discontented and are embroiled in
agitations and demonstrations of all kinds. All we need to do is to
follow the dharma that they practiced. If we tried to create a new
dharma for ourselves it might mean trouble and all the time we
would be torn by doubts as to whether it would bring us good or
whether it would give rise to evil. It is best for us to follow the
dharma practiced by the great men of the past, the dharma of our
forefathers. It does not mean that Dharma is immutable;
Dharma has to two aspects one Sanatana Dharma another is
Yuga Dharma later is valid one for an age. The Smiritis
themselves recognize this principle of social change, Manu says,
There is one set of dharma for men in the kritayuga; a different
set for each of tretayuga, dvapara and kaliyugas; the dharma
change according to the change of yuga. The Hindu (i.e
Sanatana Dharma) view makes room for essential changes. There
must be no violent break with social heredity, and yet the new
stresses, conflicts and confusions will have to be faced and
overcome; while the truths of spirit are permanent the rules
change from age to age.
Dharma is unique blend of rigidity and flexibility it protects eternal
principles and accepts continued valid traditions, Shurtis stands
for universal, eternal, and fundamental principles and Smiritis
stands for a group of values derived from these principles and
finding their expression in limited, temporary and relative field of
social life. Swami Vivekananda said, We know that, in our books,
a clear distinction is made between two sets of truths. The one
set is that which abides forever, being built on the nature of man,
the nature of soul, the souls relation to God and so on. The other
set comprises the minor laws, which guide the working of our
everyday life They belong more properly to the puranas, to
the Smiritis, and not the shruti..custom of one age, of one yuga,
have not been the customs of another, and as yuga comes after

yuga they will have to change.

Indian Society as it stood, in India the King himself was subject to
the law; that arbitrary power was unknown to Indian political
theory and jurisprudence and the kings right to govern was
subject to the fulfillment of duties the breach of which resulted in
forfeiture of kingship; that the judges were independent and
subject only to the law; that ancient India had the highest
standard of any nation of antiquity as regards the ability, learning,
integrity, impartiality, and independence of the judiciary, and
these standards have not been surpassed till today; that the
Indian judiciary consisted of a hierarchy of judges with the Court
of the Chief Justice (Praadvivaka) at the top, each higher Court
being invested with the power to review the decision of the Courts
below; that disputes were decided essentially in accordance with
the same principles of natural justice which govern the judicial
process in the modern State today: that the rules of procedure
and evidence were similar to those followed today; that
supernatural modes of proof like the ordeal were discourage; that
in criminal trials the accused could not be punished unless his
guilt was proved according to law; that in civil cases the trial
consisted of four stages like any modern trial plaint, reply,
hearing and decree; that such doctrines as Res Judicata (prang
nyaya) were familiar to Indian jurisprudence; that all trials, civil or
criminal, were heard by a bench of several judges and rarely by a
judge sitting singly; that the decrees of all Courts except the King
were subject to appeal or review according to fixed principles;
that the fundamental duty of the Court was to do justice "without
favor or fear".
Rule of Law in Ancient India
From the Vedic period onward, the perennial attitude of Indian
culture has been justice and righteousness. Justice, in the Indian
context, is a human expression of a wider universal principle of
nature and if man was entirely true to nature; his actions would
be spontaneously just. Men in three major guises experience
Justice, in the sense of a distributive equity, as moral justice,
social justice, and legal justice. Each of these forms of justice is

viewed as a particularization of the general principle of the

universe seen as a total organism. From the broadest to narrowest
conception, then, ancient Indian views on justice are inextricably
bound up with a sense of economy (Wayman 1970). Human
institutions of justice - the state, law, - participate in this overall
economy; but the belief has remained strong in India through the
centuries that nature, itself, is the ultimate and final arbiter of
justice. Ultimately, justice is cosmic justice (Underwood 1978).
The state performed its duty of protection of society and the
individual through coercive enforcement of the standards of
justice, which are reduced for the purpose into the minutiae of
positive law. Through practical law-enforcement, the state must
actually seek to controvert the ignorance of those men in society
who remain unaware or unconvinced of the very purposes for
which they themselves, the state, and society exist
(Bhattacharaya (1990). Accordingly, the traditional Indian king
has been invested with danda, "the sceptre, a symbol of the
power and authority of the state, which rules, inexorably by law
and punishment (Menski, 1991). As we have already discussed
that Manu, insists in his discussion of the role of the king that if he
does not " . . . inflict punishment on those worthy to be punished,
the stronger would roast the weaker like fish on a spit ... ".
Having fully considered the time and the place (of the offence),
the strength and knowledge (of the offender), let him justly inflict
that punishment on men who act unjustly, The exercise of the
coercive power of danda with regard to law-enforcement is
considered just in the highest sense, since particularistic legal
codes are considered to be concrete and detailed embodiments of
the more abstract and exalted principles of justice which are
fundamental to the cosmos (Underwood 1978).
The administration of legal justice and infliction of punishment
was performed on the basis of Varna system. Manusmriti
considers that it is only natural to take Varna into account in the
administration of legal justice. Manu indicates that the king,
acting as judge should consider "the strength and knowledge" of
the defendant. His strength and knowledge are estimated as
functions of his Varna. Legal consideration of varna rank has two

main outcomes, one having to do with responsibility, the other

with privilege, and one concerning the perpetrators of crime and
the other its victims. Crimes against persons were adjudicated
with reference to the class-status of the victim and the
perpetrator. The penalty for a crime was increasingly severe the
higher the Varna of the victim and lower the Varna of the
perpetrator (Das 1982). One of the chief duties of the king was
the maintenance and protection of the Varna system through his
power of danda (the sceptre). The king obeyed this concept
because it is realized that Varna and the state are necessary aids
to the achievement of the final goal of life (Underwood 1978;
Lahiri 1986). The legal distinctions of ancient India are firmly
based on an ideal of equity and justice expressed in terms of
hierarchy rather than of equality.
Judiciary in Ancient India
Sacred law (Dharma), evidence (Vyavahra), history (Charitra),
and edicts of kings (Rjassana) are the four legs of Law, of these
four in order: the later is superior to the previously mentioned.
Dharma is eternal truth holding its sway over the world;
Vyavahra, evidence, is in witnesses; Charitra, history, is to be
found in the tradition (sangraha), of the people; and the order of
kings is what is called ssana (legislations). These principles of
were administered by Court, in Sangrahana, Karvatik,
Dronamukha, and Sthnya, and at places where districts meet,
three members acquainted with Sacred Law (dharmasthas) and
three ministers of the King (amtyas) shall carry on the
administration of Justice. Sangrahana is centre for 10 villages,
Karyatik for 200 Villages, Dronamukha for 400 villages and
Sthaniya for 800 villages. This arrangement of judiciary suggests
that there were sufficient number of Courts at different levels of
administration, and for district (Janapadasandhishu) there were
Circuit Courts. My
In villages, the local village councils or Kulani, similar to modern
panchayat, consisted of a board of five or more members to
dispense justice to villagers. It was concerned with all matters
relating to endowments, irrigations, cultivable land, punishment

of crime, etc. village councils dealt with simple civil and criminal
cases. At higher level in towns and districts the Courts were
presided over by the government officer under the authority of
King to administer the justice. The link between the village
assembly in the local and the official administration was the head
man of the village. In each village, local head man was holding
hereditary office and was required to maintain order and
administer justice, he was also a member of village council he
acted both as the leader of the village and mediator with the
government.
In order to deal with the disputes amongst member of various
guilder or association of trader or artisans,(sreni), various
corporations, trade bills, guilds were authorized to exercise an
effective jurisdiction over their member. These tribunals
consisting of a president and three or five co-adjustors were
allowed to decide their civil cases regularly just like other Courts.
No doubt, it was possible go in appeal from the tribunal of the
guild to local Court, then to Royal judges and from this finally to
the King but such situation rarely arises. Due to the prevailing
institution of joint Family system Family Courts were also
established, puga assemblies made up of groups of families in
the same village decide civil disputes amongst the family
members.
Grounds of Litigation:
These eighteen "Titles of Law" or "Grounds for Litigation" given by
Manu mentions following grounds on which litigation may be
instituted, (1) Non-payments of debts; (2) deposits; (3) sale
without ownership; (4) partnership; (5) non-delivery of gifts; (6)
non-payment of wages; (7) Breach of Contract; (8) cancellation of
a sale or purchase; (9) disputes between owners and herdsmen;
(10) the law on boundary disputes; (11) verbal assault; (12)
physical assault; (13) theft; (14) violence; (15) sexual crimes
against women; (16) law concerning husband and wife; (17)
partition of inheritance; and (18) gambling and betting.
According to Brihaspati Smiriti, there was a hierarchy of Courts in
Ancient India beginning with the family Courts and ending with

the King. The lowest was the family arbitrator. The next higher
Court was that of the judge; the next of the Chief Justice who was
called Praadivivaka, or adhyaksha; and at the top was the Kings
Court. The jurisdiction of each was determined by the importance
of the dispute, the minor disputes being decided by the lowest
Court and the most important by the king. The decision of each
higher Court superseded that of the Court below.
According to Vachaspati Misra, "The binding effect of the
decisions of these tribunals, ending with that of the king, is in the
ascending order, and each following decision shall prevail against
the preceding one because of the higher degree of learning and
knowledge".
Duties and manners: to be observed by the king in administration
of justice were very clearly laid down in Sacred Texts, Manus code
says, a king, desirous of investigating law cases, must enter his
Court of justice, preserving a dignified demeanour, together with
Brahmans and with experienced councilors. There, either seated
or standing, raising his right arm, without ostentation in his dress
and ornaments, let him examine the business of suitors. Manu
cautions King by saying, Justice, being violated, destroys; justice,
being preserved, preserves: therefore justice must not be
violated, least violated justice destroys us. Further he opines the
only friend of men even after death is justice; for everything else
is lost at the same time when the body (perishes). If judicial
system fails to dispense justice Manu says that, one quarter of
(the guilt of) an unjust (decision) falls on him who committed (the
crime), one quarter on the (false) witness, and one quarter on all
the judges, one quarter on the king.
As the duty of a king consists in protecting his subjects by
dispensing justice its observance leads him to heaven. He who
does not protect his people or upsets the social order wields his
royal scepter (danda) in vain. It is power and power (danda) alone
which, only when exercised by the king with impartiality and in
proportion to guilt either over his son or his enemy, maintains
both this world and the next. The king who administers justice in
accordance with sacred law (Dharma), evidence (vyavahra),

history (samsth) and edicts of kings (Nyya) which is the fourth

will be able to conquer the whole world bounded by the four
quarters (Chaturantm mahm). A king who properly inflicts
punishment prospers with respect to those three means of
happiness; but if he is voluptuous, partial, and deceitful he will be
destroyed, even through the unjust punishment, which he inflicts.
Manu felt that the judicial administration should not rest in the
hands of a feeble minded king. If judicial administration were
given to such a king he would destroy the whole country.
Punishment cannot be inflicted justly by one who has no
assistant, (nor) by a fool, (nor) by a covetous man, (nor) by one
whose mind is unimproved, (nor) by one addicted to sensual
pleasures.
Jury system
It is found that jury system existed in Manus period and Manu
recommended the king to give the power of judicial
administration to Brahmins in his absence. Jurors were called as
sabhasada or councilors who acted as assessors or adviser of
the King. They were the equivalent of the modern jury, with one
important difference. The jury of today consists of laymen"twelve shopkeepers"-whereas the councilors who sat with the
Sovereign were to be learned in law. Yajanvalkya enjoins: "The
Sovereign should appoint as assessors of his Court persons who
are well versed in the literature of the law, truthful, and by
temperament capable of complete impartiality between friend
and foe."
These assessors or jurors were required to express their opinion
without fear, even to the point of disagreeing with the Sovereign
and warning him that his own opinion was contrary to law and
equity. Katyayana says: The assessors should not look on when
they perceive the Sovereign inclined to decide a dispute in
violation of the law; if they keep silent they will go to hell
accompanied by the King." The same injunction is repeated in an
identical verse in Shukr-nitisara. The Sovereign-or the presiding
judge in his absence-was not expected to overrule the verdict of
the jurors; on the contrary he was to pass a decree (Jaya-patra) in

accordance with their advice. Shukr-nitisara says: "The King after

observing that the assessors have given their verdict should
award the successful party a decree (Jaya-patra)." Their status
may be compared to the Judicial Committee of the Privy Council
which "humbly advises" their Sovereign, but their advice is
binding. It may also be compared to the peoples assessors under
the Soviet judicial system who sits with the professional judge in
the Peoples Court but are equal in status to him and can overrule
him. However, if the decision of the Sabhyas (Judge) were fined
and removed from the post, banished their property was also
forfeited. They compelled to make good the loss. If the decision of
Sabhyas is promoted by greed, fear, friendship, etc each one was
fined twice.
Judicial Psychology
Manusmriti has specified the part of the judges function to probe
the heart of the accused and the witness by studying their
posture, mind and changes in voice and eyes. Chapter VIII, 25
(Para) - By external Signs let him discover the internal disposition
of men, by their voice, their colour, their motions, their aspect,
their eyes, and their gestures. 26 (Para) - The internal (working of
the) mind is perceived through the aspect, the motions, the gait,
the gestures, the speech, and the changes in the eye and of the
face. This is unique it is the only ancient legal text which is the
first code of law to take account of judicial psychology. It is further
held that his flattering voice, licking the corner of his lips,
speaking incoherently, loss of colour of his face and frequent
coughing indicate the probability of his untruthfulness in the eyes
of the Mitaksara of the Yajanvalkya Smriti.
Law Relating to Witnesses
In ancient India to hearsay was not allowed, but a witness in a
foreign country can give his evidence in writing before a learned
man in the three Vedas and the writing sent by him may be read
in the Court. As regards the number of witnesses, it is said that
this number may be multiple. But a single witness is not accepted
as the facts cannot be collaborated. But Narada Smrti states that
a single witness may be accepted, if it is approved by both the
parties. Kautilya states that a single witness can be accepted, if

the very transaction has taken in secret.

Qualifications for witness, he should be a man of good character,
trustworthy, knows Dharma and acts up to it. Witness from the
same caste is to be prepared, and in cases relating to women a
woman can be witness. As regards the nature of incompetent
witnesses, it may be said that the persons having no faith in the
Dharma, the persons who are very old persons, minors, oil
presser, intoxicated person, lunatic, distressed, inattentive,
undertaking long journeys, gambler etc.
Narada further gives us five-fold classification of incompetent
witnesses, (1) the learned Brahamanas, and ascetics practising
austerities. (2) Thieves, robbers, gamblers (3) witnesses are to be
rejected on the ground of contradiction in their evidence (4) one
who comes of his own accord for leading an evidence is also
treated as incompetent, (5) When a person dies, he names some
persons as witnesses for the transaction, they can come as
witnesses and the person who is informed by the parties in a
general way and not in a specific way is not to be admitted as a
witness. Ordinarily the witnesses are to be examined in the
presence of the parties and never behind their back. Further, a
witness should be examined by his tone, change of colour, eyes
gestures etc
The judge should address a Brahmana witness by speak and
swear by veracity. He should address the Ksatriya witness as
speak the truth and he should swear by the animal he rides and
his weapon. A Vasisya should swear by kine, gold, and grian and a
Sudra should swear by all grave sins. The view of majority
witnesses shall be prepared, in case where there is no majority
opinion is possible, and then the quality of statement made by the
witnesses is to be taken into consideration. The claim is not said
to be established when witnesses depose more or less than that
mentioned in the statement or pliant of plaintiff and the
disposition has not taken place at all and in such a case no fine is
to be imposed. When there is conflict among the witnesses as
regards time, place, property, amount, then the dispositions are
as good as not taken place. Generally no ordeals (divyas) are to

be resorted to when the witnesses are available. The oaths are to

be employed in the disputes of small value and the ordeals are to
be resorted to in serious disputes of crimes.
Punishment for false witnesses, (a) where a witness denies
deposing in the Court matter, after giving promise to that effect
along with other witnesses, (b) if for unfavourable circumstances,
a witness denies to depose, (c) if a witness gives false evidence
frequently, in all these cases witness shall be punished with fine
and in last case physical punishment can also be imposed on such
witness.
Classification of Vivada (disputes)
Apart from 18 subject matters of legal proceedings (as classified
by Manu), distinction has been made between Artha-Vivada (civil
dispute) and Himsra samudbhava Vivada (criminal disputes),
amongst criminal dispute there are 4 sub division (i) Danda
Parusya (assault and battery) (ii) Vak- Parusya (Defamation) (iii)
Sahasa (Murder and other violation) and (iv) Strisangrahana
(adultery). A cause of action arises when a person, being
harassed in a way contrary to the rules of Smriti and usage,
lodges a complaint. The judicial proceedings usually comprise four
parts, namely complaint, reply, evidence and judgment. Replies
can probably be of four kinds, and these are admission, denial, a
special plea, relating to a former judgment. Three types of
evidences are mentioned namely document, possession and
witness. As regards the rules for summoning, it is evident that the
opponent or the defendant, against whom the suit is filed, must
be summoned to the Court. (2) Even other persons connected
with the defendant (in the suit) may also be summoned. (3)
When, however, some persons like soldiers, Agriculturists,
cowherds etc. are fully occupied with their work, their
representative may be allowed to appear before the Court, as
held by the Narada Smriti. (4) In serious matters, however, the
persons are allowed to appear in person before the Court,
particularly with proper safeguards (5) in more serious matters
like Murder of Woman, Adultery with her, as held by the
Mitakashara on the Yajanvalkay Smriti no representative is
allowed. But in such matters, the concerned must appear before

the Court (6) it should be noted that the presence of some

persons like the deceased, very old (more than Seventy years
old), persons in calamities, engaged in religious rites, in kings
duties, a woman whose family is in bad condition, is actually
condoned. (7) If, however after serving the summons defendant
fails to come before the Court the King should wait for 30 days or
15 days and pass the Judgment in favour of the plaintiff. (8) But if
there is an invasion by enemy or famine, or epidemic, than the
King should not fine the defendant who is thus prevented from
coming to the Court (9) However agents can be allowed to
represent on behalf of his disabled Master.
Representation by lawyer: the question also arises whether in
ancient India, the system of lawyers is allowed or not. The views
of Narada, Katyayana and Brhaspati show that the skilled help
was required in the litigations. The commentary of Asahaya on
the Narada Smrti indicates that those who are well- versed in the
Smriti literature could afford help for monetary consideration to
the parties that have appeared before Court. (Which is also
recognized in C. P. C .1908 Order III Rule 2). Fees of such skilled
persons were also fixed and he was appointed by parties not by
Court.
Interpretation of Legal Documents
Artha Shastra and Manu Smriti are considered as significant
treatises as far as the legal system is concerned. In ancient Indian
societies, an independent school of legal practices existed. Some
general principles in connection with the judicial proceedings
state that in case of disagreement between two texts of Smriti,
justice according to usage is to be followed. In case of conflict
between a text of Smriti associated with the dharma and one
relating to artha, the former prevails. The former one sets rules
regarding things unnoticed or otherworldly, while the latter one is
more concerned with everyday matters.
Judges were required to decide cases, criminal and civil, according
to law (samyak, yath-shastram, shastro ditena vidhina). This
involved interpretation of the written text of the law- a task which
created many problems such as the elucidation of obscure words

and phrases in the text, reconciliation of conflicting provisions in

the same law, solution of conflict between the letter of the law
and principles of equity, justice and good conscience, adjustment
of custom and smritis, and so on. This branch of law was highly
developed and a number of principles were enunciated for the
guidance of the Courts. The most important of them related to the
conflict between the dharm-shastra and the artha-shastra.
Three systems of substantive law were recognized by the Court,
the dharma-shastra, the arth-shastra, and custom which was
called sadachara or charitra. The first consisted of laws which
derived their ultimate sanction from the smritis and the second of
principles of government. The border line between the two often
overlapped. But the real distinction between the smritis and arthshastra is uniformly secular, but that of the dharma-shastra not
always so. In fact so remarkably secular is the arth-shastra in its
approach to the problems of government that this has induced
some writers to advance the theory that the artha-shastra (literal
meaning: the science of artha or pursuit of material welfare), did
not evolve from the dharma-shastra but had an independent
origin and developed parallel to it.
Legal system in ancient India also includes adverse possession
and different modes of acquisition. Adverse possession grants
right to the possessor if the owner who, even while seeing his
property adversely possessed, does not raise any objection. A
permanent property vests in the person adversely possessing it
for 12 years without any objection from the owner. In case of
movables, the period is ten years. The suitable modes of
attainment of a property are purchase, gift etc. Generally
acquisition, by a valid mode, is stronger proof than possession.
Acquisition, without even slight possession, is not valid. A
mortgage vests in the mortgagee if it is not redeemed even after
the principal amount is doubled. A mortgage, with a time-limit,
lapses after the expiry of that time.
Punishment
The theory of deterrence was the purpose of punishment and the
infliction of punishment should be according to the principles of

natural justice (Bose and Varma 1982). The king having fully
considered the time and the place of the offence, the strength
and the knowledge of the offender should justly inflict punishment
on the offenders. The concept of the consideration of the offence
and offender for the purpose of punishment falls in line with the
modern principles of justice evolved by Jeremy Bentham and
Ceseare Beccaria. It was perceived that only punishment can
control all the human beings in the earth and utmost importance
was given to punishment. However, chary of punishment given
without proper judgment and felt that it may destroy the country.
The king if he does not punish the offenders who were worthy of
punishment, then, the stronger would roast the weaker, like fish
on a spit and a situation will arise, where, might may overrule the
right. In a country where punishment is not properly inflicted, the
ownership would not remain with any one; the lower ones would
(usurp the place of) the higher ones (Buhler 1984). The whole
world is kept in order only by punishment, because there is no
one in the world who will always act in a just manner. Only the
fear of punishment runs the world. Manu also feared that if there
was no punishment then all castes (varna) would be corrupted (by
intermixture), all barriers would be broken through, and all men
would rage (against each other) in consequence of mistakes with
respect to punishment. There was deterrent against unjust
punishment and warns that unjust punishment will destroy
reputation among men, and fame (after death), and will cause
even in the next world the loss of heaven. Manu provides stages
of punishment for an erring person if he continues to do the
crime, first by (gentle) admonition, afterwards by (harsh) reproof,
thirdly by a fine, after that by corporal chastisement. However,
when the offender is not able to restrain such offence even by
corporal punishment, then the four modes co jointly should be
applied.
Conclusion
The Constitution of India has sought to create a more equal and
just rule of law between individuals and groups than what existed
under traditional authorities in ancient India. The Indian
Constitution strives to eliminate the humiliation that people
suffered under the traditional social system of caste and

patriarchy, thus creating new ground for realization of human

dignity. The realization of both formal and substantive equality
that is happening under the rule of law in contemporary Indian
society can facilitate a more creative flourishing of a life of
dharma or righteous conduct in self and society (Giri 2002).
However, in spite of the provisions in the constitution for equality
in justice, we can find that ancient Indian manuscripts
reminiscences in the village justice system playing a major role in
the dispensation of justice. Holden (2003) in her research on
some villages in India, have found out that most of the village
justice system is based on caste and found out that many of the
principles grounding the traditional panchayats decisions have an
evident source in the ancient Hindu tradition.
*The author Suparswa Chakraborty, Academic Department, Indian
Institute of Legal Studies can be reached by e-mail
iils.siliguri@gmail.com